FEDERAL COURT CASES

 

M.A.A. v. Minister of Citizenship and Immigration, 2014 FC 1116

The Refugee Board’s decision denying the refugee claim from Somalia was quashed. The Board misstated and misrepresented the evidence before it. The court concluded that “the Board’s assessment of the evidence was unfair and that the decision lacks the justification, transparency and intelligibility required of a reasonable decision.”

 

B.B. v. Minister of Citizenship and Immigration, 2014 FC 1245

The Federal Court considered a judicial review application from a decision of the Refugee Appeal Division denying the appeal of a negative Refugee Board decision of an Eritrean family on the basis of a lack of satisfactory identity documents. The Court set aside the decision, and held that the RAD’s decision was unreasonable. It was reasonable for the applicants to believe that their birth certificates were sufficient to establish their identities. The RAD erred by failing to permit new evidence to be submitted in support of their identities.

 

H.G. v. Minister of Citizenship and Immigration, 2012 FC 873

The Federal Court held that the Refugee Board erred by failing to consider all of the evidence in concluding that the claimant’s identity had not been established. The inferences drawn by the Refugee Board were unreasonable, and the decision was set aside and a new hearing ordered.

 

T.N. v. Minister of Citizenship and Immigration, 2012 FC 873

The Federal Court overturned a decision of the Refugee Board which declared that a Sri Lankan refugee claimant was not a Convention refugee. The Court stated:

“I conclude that it is an error of law as both a denial of natural justice/breach of fairness as well as one of jurisdiction as in not exercising jurisdiction, to fail to address an issue of persecution that was reasonably clearly raised.”

 

B.N. v. Minister of Citizenship and Immigration,

An immigration officer refused an application for permanent residence by a Convention refugee on the basis that he did not submit a passport or other acceptable identity document. The Court held that the officer erred in refusing to consider and accept the statutory declarations that were submitted in support of his identity. The Court stated:

“Even though the Officer may have had concerns regarding the Applicant’s credibility generally, given his previous submissions of fraudulent documents, the decision to refuse the statutory declarations without regard to their contents does not correspond to the requirements of section 178….The failure to provide reasons for this outright rejection is similarly problematic.  The Officer’s decision therefore constitutes an error of law and is in breach of procedural fairness.”

 

J.N. v. Minister of Citizenship and Immigration, 2009 FC 220

The applicant was a citizen of China who applied for an immigrant visa as a skilled worker. A visa officer refused his application, because she did not award him 5 points for adaptability for his period of study in Canada. The Court held that the visa officer erred by stating that no evidence was provided to show that he studied in Canada, when he had submitted copies of three Canadian study permits and that he was a student in Canada pursuant to those study permits. The refusal was set aside and an order was made that the application be re-considered by a different visa officer.

 

K.A. v. Minister of Public Safety and Emergency Preparedness, 2009 FC 1199

The applicant was accepted as a Convention refugee but was found inadmissible for permanent residence because he was found to have been a member of an organization that has engaged in war crimes or acts of terror. He applied for Ministerial Relief from this exemption on the ground that his admission to Canada is not contrary to the national interest. The Minister denied granting the relief, but the Court quashed this decision and ordered that it be re-considered. There was no attempt by the Minister to consider the relevant factors in reaching his decision.

 

M.O.K. v. Minister of Citizenship and Immigration, 2008 FC 400

The Federal Court overturned a Refugee Board decision that denied the claim on the basis of a lack of attempt to obtain identity documents. The Court stated: “In my view, the Board, as a specialized tribunal, failed to have proper regard to the evidence available to it to explain the difficulties inherent in obtaining identity documents for persons in the situation of […..] and his designated representative.  By failing to have that regard, the Board’s conclusions that no reasonable efforts had been made to obtain identity documents and that no reasonable explanation had been provided for that failure were made in reviewable error.”

 

A.C.G.P. v. Minister of Citizenship and Immigration, 2007 FC 661

The respondent acknowledged that the Refugee Board’s decision was “not great”, but argued that it was not patently unreasonable and the Court should not interfere. The Court disagreed. In the first paragraph of the decision, the Board confused the principal applicant with the secondary applicant, which indicated a lack of care. All of its negative credibility findings related to the testimony of the secondary claimant, yet the Board rejected both claims. The decision was set aside and a new hearing was ordered.

 

T.M.P.S.T. v. Canada (Minister of Citizenship and Immigration) 2003 FC 977, August 13, 2003 The visa officer rejected the application for an immigrant visa as a skilled worker, giving zero points for experience because she was not satisfied that the applicant was a qualified computer programmer. The Federal Court set aside the decision:

“There is nothing in the record, the affidavit of the Visa Officer or in the transcript of her cross-examination on that affidavit to show that she turned her mind to a comparison of the Applicant’s experience, as presented at the interview, and outlined in her employment references, and the duties set out in the NOC for a computer programmer job description 2163. In the result, this Court is unable to identify the reason for the Visa Officer’s refusal of this application.“

 

A.H. v. Canada (Minister of Citizenship and Immigration) 2005 FC 803, June 3, 2005   In an application for Mandamus, seeking a Court order that Canada Immigration process the Convention refugee application without delay, the Court found that the processing of the application was unreasonably delayed and granted an order that a decision be rendered within six months. The Court said:

“This internal scurrying about with no actual progress is not a satisfactory justification for delay. Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant’s right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent’s obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.”

“In summary, there has been excessive delay beyond that which the nature of the process requires, which is not attributable to the Applicant, and for which there is no adequate justification. The Applicant is entitled to an order of mandamus….. The Respondent will have the 6 months to make its decision, one way or the other.”

 

Canada (Minister of Citizenship and Immigration v. Y.A. 2001 F.C.T. 972, August 30, 2001

The applicant was found to be a Convention refugee, but the Minister of Citizenship and Immigration appealed the decision and argued that the Board should have excluded him from refugee protection because of complicity in war crimes or crimes against humanity. The Federal Court dismissed the appeal and found that the Board did not err in law in finding that the defence of duress applied, as he was forced in the army against his will and had no means to escape without risking his life.

 

T.M. v. Canada (Minister of Citizenship and Immigration) 2005 FC 911, June 30, 2005 The Federal Court set aside the negative refugee determination of the Immigration and Refugee Board of the claim from Ethiopia. The Court said:

“I conclude that the RPD substantially distorted the thrust of directly applicable country conditions documentation that was before it in arriving at the decision under review. In the circumstances, I am satisfied that the RPD erred in a reviewable manner.”

 

A.B. v. Canada (Minister of Citizenship and Immigration) 2006 FC 123, February 3, 2006   The visa officer refused an application for immigrant visas that were requested on humanitarian and compassionate grounds. The Court found that the visa officer’s reasons for refusal were inadequate and did not address the issues raised in the application.

“The applicant was extremely thorough in her submissions in support of her application, and was entitled to be given adequate reasons for the refusal of her application for permanent residence on humanitarian and compassionate grounds. In this case, the Officer’s letter of February 18, 2005 and the notes in the applicant’s CAIPS file cannot be deemed to constitute sufficient and adequate reasons.

T.A.O. v. Canada (Minister of Citizenship and Immigration) 2003 FC 1353, November 20, 2003   Canada Immigration refused to grant permanent residence to the applicant who was accepted as a Convention refugee. He was required to present a passport, but the immigration officer refused to accept his passport because it was issued in Canada and did not pre-date the refugee claim. The Court stated that the immigration officer had no discretion to refuse to accept the valid and unexpired passport.

“Since the applicant had a “valid and subsisting” passport at the time of his application, which is no longer disputed by the respondent, it was not within the officer’s discretion to determine if the issuance of this document was satisfactory. The “satisfactory” test applies only to identity documents other than passports and if a person has a “valid and subsisting” passport or travel document, then the person will have satisfied the identity part of the requirement to become landed. In this case, there was no question of the authenticity or the validity of the passport, and it bore both the name and the photograph of the applicant. Hence, the officer erred in law when she rejected the passport submitted by the applicant on the grounds that it was issued after his entry into Canada.“

A.G. v. Canada (Minister of Citizenship and Immigration) 2006 FC 907 Date: July 21, 2006   The Court set aside the Board’s negative refugee determination in the claim from Ethiopia, stating:

“…the Board was impermissibly overzealous in seeking to find [the applicant] not to be credible. No amount of curial deference warrants allowing the Board’s finding of credibility to stand.”

 

M.Y. v. Canada (Minister of Citizenship and Immigration) 2003 FCT 131, February 6, 2003 — The visa officer rejected the application for an immigrant visa as a skilled worker, giving low points for personal suitability. The Court found that the visa officer erred by basing his decision on evidence that was not in the record. “It is not open to a visa officer to fail to ask questions of a general nature, arrive at a conclusion in the absence of evidence to support it, or arrive at a conclusion based on unrelated evidence, and then say that the fault lies with the applicant because the onus lies there.  Here, the visa officer arrived at a conclusion in the absence of evidence to support it. The conclusion is therefore patently unreasonable.”

 

H.V. v. Canada (Minister of Citizenship and Immigration) 2005 FC 415, March 29, 2005

The Federal Court set aside the negative decision of the Immigration and Refugee Board in the refugee claim from Albania. The Court said:

“…it is insufficient, as a matter of law, for the RPD to simply state that it considered the applicants’ evidence to be incredible. The RPD is obliged to give reasons in clear and unmistakable terms for rejecting a claim on the ground of credibility. After a careful reading of the RPD reasons as a whole, I can find no portion of the reasons that complies with the requirement to give reasons for credibility findings in clear and unmistakable terms. Clear reasons were particularly required in view of the finding of the RPD that Mr. V[….]’s uncontradicted testimony was “essentially corroborated” by another witness.

 

H.A. v. Canada (Minister of Citizenship and Immigration) IMM-2174-96, March 25, 1997

The Federal Court set aside the negative refugee determination of the Immigration and Refugee Board. The Court said:

“I am satisfied the Board erred when it decided that the applicant was not a national of Ethiopia. The Board made this decision because she presented no identity documents from Ethiopia and the Board placed little weight on the letter from the Ethiopian Association and the witness called for the purpose of establishing her identity. It is clearly evident that the applicant was from Ethiopia and that she speaks the Amharic language and that she referred to dates in the Ethiopian calendar. She also spoke of Ethiopia in general. In addition, the applicant spoke of the Ethiopian Orthodox Church and that she attends this church”

 

M.H. v. Canada (Minister of Citizenship and Immigration) 2006 FC 908, July 21, 2006, The Court set aside the Board’s negative refugee determination in the claim from Ethiopia, stating that the Board’s decision to deny the claim was patently unreasonable.

 

B.G. v. Canada (Minister of Citizenship and Immigration) 2002 FCT 679, June 14, 2002 The Court set aside the Board’s negative refugee determination in the claim from Ethiopia. It found that the Board erred in law by ignoring the testimony of a witness whose evidence corroborated that of the claimant

 

S.S.M.v. Minister of Citizenship and Immigration IMM-4064-98

The application for an immigrant visa as a skilled worker was denied because the visa officer refused to award points for a bachelor degree to the applicant because his bachelor degree was only a 2 year degree. The Court found that the visa officer erred in law and the applicant was entitled to the full points for his bachelor degree.

“There are several considerations that lead me to conclude that counsel for the applicant’s argument is the better one. The text of the criteria that are to be addressed under the education factor in Schedule I of the Regulations refers to a first-level university degree that “requires at least three years of full-time study”. This suggests that not all first-level university degrees require three years of full-time study. Also, “three years of full-time study” in the Canadian context means three eight-month periods with four months off between each period. In addition, as noted, while the reference under the occupational factor to the NOC only indirectly brings in a reference to a bachelor’s degree, subsection (1)(f), the education and training factor of Schedule I of the Regulations refers directly to “a university degree at the bachelor’s level”, not as under the education factor to “a first-level university degree that requires at least three years of full-time study.” When different terminology is used in the same legislative document, one usually assumes that the difference has been noticed by the drafters, that there is a reason for the two different formulations, and that they are not intended to carry the identical meaning.”

 

A.S. v. Canada (Minister of Citizenship and Immmigration, 2001 FCT 404, April 27, 2001

The application for an immigrant visa as a skilled worker from Malaysia was denied because the visa officer awarded zero points for work experience. The Federal Court held that the visa officer used the wrong approach in assessing the applicant’s work experience, and the “error in assessing experience was fundamental and the law is well-settled in this regard.” The Court awarded $1,000 in costs to the applicant

 

N.A.T. v. Canada (Minister of Citizenship and Immigration), 2001 FCT 540

The refugee claim from Pakistan was denied by the Immigration and Refugee Board. The Federal Court overturned the Board’s decision, because the Board erred in law by applying too high of a burden of proof on the applicant:

“In the present case, the Board stated that it highly doubted that the father had much to fear. What did the Board mean by the words “highly doubt”? Was it that the applicant faced “slightly more than a mere possibility” of persecution? I do not know what the Board meant as there is no explanation in the decision. If the words “highly doubt” mean the same as “slightly more than a mere possibility”, then the applicant has established that he has good grounds or a reasonable chance for fearing prosecution. I therefore conclude that the Board has made an error in failing to clearly state what standard of proof it had applied in order to determine the refugee status of the applicants.”